the siding, through a cross over, then moving tine equipment ahead a short distance so that the two spikens could be resupplied. Finally, he was responsible for spacing the units and moving them five miles beyond the siding to the current work site. The entire movement on the main line was protected by a Form B (which Included the switch).
During the machinery movement, two Roadmasters were present and Claimant soon discovered one was also directing the machinery movement which caused some concern to the operators as they had. to watch for Claimant's and the Supervisor's signals.
According to the Claimant, the Roadmaster told him to go on ahead, do whatever he had to do. .
Claimant, before leaving the siding, did talk with the Machinlat.who was repairing the tamper that was left on the siding. The Machinist advised the repairs would be completed shortly and an Operatorwould have to be furnished to move the tamper off the siding. ..
Claimant proceeded ahead to the work site, unloaded soma company material, was advised by the Assistant Roadmaster at the work site to be sure he tagged and spiked the switch when the tamper was moved.
Meanwhile, back at the siding, the two Roadmasters were the last to leave the area, but found the switch was not tagged, nor was It spiked.
They- reported the incident to the Superintendent who then, after checking Claimant's record, ordered him withheld from service pending the results of the Investigation.
After the Investigation, the Carrier believed it had established sufficient evidence of Claimant's culpability for the charges assessed, and on April 8,1999, they wrote Claimant advising him that he was dismissed from service.
The Board does not agree. The Carrier has not furnished sufficient evidence that would support Claimant's culpability for the charges assessed and this Is so for the following reasons:
Regarding the Job briefing, it was attended by two Roadmasters, one Assistant Roadmaster, ono Foreman and two Assistant Foreman, yet no one referenced the out-of-service track, nor did anyone caution Claimant about Rule 6.3.2, the Rule Carrier Insisted had to be compiled with to protect the mechanic and the machine despite the switch being well within the Form 8 protection, that the day was sunny, that the tamper was only 2$ feet from the switch In plain sight; that it was protected by a locked derail.
The obvious mix up with the Roadmaster telling, Claimant that he had its indicating he was In control during the staging of the equipment and that Claimant was to go and do whatever he had to do.
Claimant to go ahead The Roadmaster says he was not by the switch, but 200 yards beyond when he told Claimant, who the Roadmaster contends, was by the switch to go on and do whatever he had to do. This Is an obvious conflict in testimony, but the witness credibility is not an issue as the party who Issued the discipline was not a witness to the testimony of either party.
It is understood that witnesses requested by the charged employee are not compensated for lost time or travel expense as those who are requested to be witnesses for the Carrier, and since those requested by Claimant were some distance (some 1500 to 1800 miles from the site of the investigation) it is readily apparent that since several hundred dollars in travel expense and lost time would be incurred why those notified of Claimant's request would not be there, but the Carrier should have promptly notiffed Claimant that the Carrier was not ordering the witnesses to appear but would not oppose their being off to attend the Investigation. This was not done and since there was an obvious contrast in testimony, another witness' testimony may have darified this issue.
The Board does not intend to lessen the importance of safety and the need to enforce compliance, but that enforcement has to be equal, regardless of status. It cannot be selective with the bottom rung of the Supervisors being singled out for discipline to spare others on up the chain of command who had just as much obligation to comply with the Rules.
f'e13 -.w _,4-~-CASE NO. 131 OF PUBLIC LAW BOARD 5850
(Referee R. L Hicks)
It has been said more than once that one school of thought among railroad industry arbitration practitioners is that dissents are not worth the paper they are printed on because they rarely consist of anything but a regurgitation of the arguments which were considered by the Board and rejected. Without endorsing this school of thought in general, it is equally recognized that a dissent is required when the award is not based on the on-property handling. Such is the case here.
Initially, one may think that the Organization should leave well enough alone since the majority ruled in this case that the Organization's claim must be sustained because 'The Carrier has not only failed to establish Claimant's culpabW for the charges assessed, it did not afford Claimant a fair and impartial investigation.' However, this Labor Member feels compelled to provide a dissent due to the fact that, while the Employes agree completely with the above quote of the Award, we cannot agree, in total, with the following excerpt taken from page 5 of the Award:
First, the Brotherhood's General Chairman did not request witnesses to be present `in behalf of or `for" the Claimant as the quoted excerpt infers. Instead, in his letter of March 9, 1999 to the Carrier (Exhibit 3), General Chairman Hemphill requested `. . . that the Carrier arrange for the following employees be noted to be witnesses and attend the formal investigation . . . as they have pertinent information so all facts of the investigation can be developed."
The General Chairman's request was based on the well-established premise that, as part of its responsibility to provide a fair and impartial investigation, it is the obligation of the Carrier to seek out the truth by ensuring that all facts material to the charges, both for as well as against the employee, are fully developed. This obligation requires the Carrier to take the initiative in obtaining witnesses and evidence without regard to whether the witnesses are anticipated to have information in support of the charges or not. As stated in First Division Award 21058;
Based on the advice of General Chairman Hemphill, the Carrier was aware of the fact that the witnesses requested had `pertinent information so all the facts of this inves6gafron [could] be developed, 'therefore, it should have taken the initiative to have them present for examination at the investigation.
As for the second point, i.e., the question concerning the compensation for the witnesses' lost time or travel expense, again, this Labor Member believes it is completely inappropriate to compensate the witnesses `for" the Carrier while denying the same consideration for the witnesses requested 'in behalf of the Claimant, "for the Claimant' or, as in this case, for those who simply fiave pertinent information.'
It must be recognized that situations of this nature, i.e., the Carrier preferring charges and proposing discipline, are Carrier initiatives. Absent the Carrier's contemplated action, no charges or discipline would be preferred or assessed, respectively. Hence, it is clear the expense of the Carrier following through with its initiative must logically be the responsibility of the Carrier.
In this same regard, one must obviously recognize that even though it is a Carrier initiative, the language of this Award suggests that the charged employee must compensate the witnesses in question regardless of the fact the charges may be without any foundation whatsoever. That is, as in this case, had the Carrier made arrangements ' ,~.r3 N6 50
to have the witnesses present at the investigation as requested and they would have presented further testimony/evidence that the charges were without valid foundation, the Carrier would not have had to compensate them for lost time and travel expense because they would have been incorrectly and inappropriately categorized as witnesses `in behalf of,"for' or "quested by" the charged employee. Hence, even though the entire matter was a Carrier initiative and there was no valid basis for the charges, the Claimant would have been required to compensate the witnesses for lost time and travel expense to help prove his innocence. Obviously, this makes no sense and is in direct conflict with established railroad arbitration principles that dictate the Carrier has the burden of proving its charges.
Notwithstanding these obvious facts, the scales of justice are, without a doubt, unfairly tilted in favor of sustaining the Carrier's charges if the Carrier is allowed to offer compensation to witnesses for lost time and travel expense if they provide support for the Carrier's charges, and deny the same offer to others if they do not. To confront witnesses who have evidence that does not support the charges with such an inequity can only serve to suppress evidence pertinent to the charges which obviously taints the Carriers obligatory objective to provide a charged employee with a fair and impartial investigation.
For these reasons, I must dissent concerning the Award's inference that witnesses should be categorized as ybbr'or `against' the charged employee, and that witnesses will be compensated by the Carrier for lost time and travel expense if they are only `. . . witnesses for the Carrier.'